The August Aichhorn Center operates the most
secure residential treatment facility (RTF) in New York State. This program,
the only RTF in Manhattan, and the only one in New York City that accepts
normal IQ teenagers, was specifically intended to serve youngsters who
could not be handled in any other facility in the foster care, mental health
or juvenile justice systems except for State hospitals or correctional
institutions.

The Aichhorn RTF has been in operation for
10 years, and has routinely accepted without screening (and retained, without
use of outside psychiatric hospital services) any adolescent referred by
the State-operated Pre-Admission Certification Committee for New York City.
Despite the extreme selection of the population, the program has never
experienced a patient fatality, and there has been only one major injury
to a patient (which was self-inflicted). Despite its easily accessible
urban location, the program also has a very low rate of "elopements," largely
because most residents feel fairly safe and comfortable there.

We have, thus, developed and demonstrated
considerable expertise in safe management of very large, very behaviorally
disturbed teenagers in an RTF environment.

We do not have, and have never had, a "seclusion"
or "time-out" room or area, and we have never utilized mechanical restraint
devices of any kind. We do not believe such interventions can ever be described
as therapeutic, and we have successfully demonstrated that, provided adequate
numbers of adequately trained staff are available, they are not necessary.
We have no question, therefore, about the effect of the present regulatory
proposal which appears intended to minimize if not eliminate the use of
such approaches; ultimately, we would support an effort to eliminate them
entirely, provided this was backed with fiscal provision for adequate staffing.

We believe it is appropriate that the regulatory
proposal limits any application of physical force to the minimum necessary
to insure the safety of all concerned, and that the autonomy and dignity
of all patients be respected as far as possible at all times. Because we
support this point of view, however, we are greatly concerned about the
interim proposal's approach to regulation of "personal restraint," largely
because we believe that the actual effects of this section of the regulation
will in fact be the opposite of the stated goals of improved patient protection
(viz the title of section 483.356).

Large, aggressive, impulsive and sometimes
irrational children and adolescents can be extremely dangerous to themselves
and to each other. It is common that some level of physical interaction
is required to prevent residents from seriously injuring themselves and/or
each other. While there is some inherent risk in such interventions, and
while we agree fully that it is essential to carefully control and monitor
their use to prevent
overreliance on such techniques, the present
regulatory proposal appears to ignore the risks involved in failure
to appropriately institute "personal safety interventions" when they are
required to avoid imminent risk of injury to the patient or others. Many
readers of the proposal among our staff have commented that if our procedures
were significantly altered in response to these regulations, the level
of physical risk to residents (primarily from each other) would increase
substantially.

The rationale for the original regulatory
proposal [HCFA-2065-IFC], cites the Hartford Courant as the source
of purportedly alarming estimates of as many as 50 deaths per year nationally
of juveniles in psychiatric facilities of all types. However, the
cost analysis section of the proposal estimates the national incidence
of restraint/seclusion in residential treatment facilities alone at
282,000 per year [p.7156]. Thus, accepting this highest "statistical projection"
of mortality (which is offered with minimal justification by the
Courant),
and even assuming that all of the deaths occurred in Medicaid-funded RTFs
(which is obviously false), still only suggests a mortality rate from all
types of restraint and seclusion of less than .00018 (.018%), which
is extremely low for almost any physical intervention (i.e. administration
of antibiotics or high school contact sports).

In fact, however, the actual rate is at least
an order of magnitude smaller. The Courant's actual statistics reveal
that the number of documented deaths of individuals under 21 nationally,
in an 11 month period, in all types of facilities including group homes,
summer camps, detention programs, psychiatric hospitals, and mental retardation
facilities as well as residential treatment programs (accredited or otherwise)
was twelve; of these, only five were in facilities that might have
been RTFs. [10/11/98] Even assuming that all of these deaths occurred in
the Medicaid-funded RTFs included in the HCFA-estimated 282,000 restraint/seclusions
per year, the mortality rate for all episodes of all types
of restraint and seclusion in these facilities would have been .000019
(.002%). Further, several of the five fatal events involved interventions
other than "personal restraint," and some undoubtedly occured in non-Medicaid
treatment settings, so the actual rate is even lower.

The objective conclusion is inescapable that,
based on the information supplied by the regulatory agency itself, "personal
restraint," whatever its limitations, actually carries with it a real but
exceedingly
small risk of death. On the other hand, it is also clear, that "personal
restraint" is often the only way of avoiding serious physical harm to patients
(including death).

A rational, ethically defensible risk-benefit
analysis of any treatment intervention requires that the estimated risks
caused by unnecessary use of the procedure be weighed against a corresponding
estimate of the risks incurred by withholding the intervention when it
would be beneficial. This balance determines the point at which we conclude
that the failure to treat carries more risk than the treatment. Such assessments
are the mainstay of clinical care, whether we are considering major surgery
or over-the-counter medication. Thus we expect a fairly high level of unnecessary
appendectomies, because the real but relatively small risks of this procedure
are deemed less grave than the risks of ruptured appendix. We recognize
that either choice may lead to a fatal outcome in some instances, but the
risk of withholding surgery is greater than the risk of performing it.
Similarly, appropriate planning to regulate use of "personal restraint"
requires some estimate of the patient mortality (and morbidity) associated
with underutilization of this intervention, to balance against the
stated risks of the procedure itself. Nowhere in the regulatory statement
do we find any information on the dangers of failure to intervene
physically to protect patients, although it is (or should be) clear to
all concerned that substantial risks of this kind do exist.

Rather than developing from an appropriate
risk-benefit discussion, the present regulatory proposal appears to be
based on three unsupported assumptions:

1) The primary source of dangerous and/or
inappropriately violent treatment of patients is non-professional staff,
while professional staff and parents are a bulwark against such abuse.

2) There are no "risks" to patients
from underutilization of physical intervention in psychiatric treatment
facilities.

3) The financial and organizational "costs"
associated with increased surveillance, reporting and intervention, and
modified training, will not divert important resources from patient care.

We are unaware of the basis for the first
assumption, which appears to underlie the others, and we are at a loss
to explain it. It is not supported by the regulatory document or by our
own experience. The tone of the interim regulations suggests a belief that
family members and certain credentialled staff will necessarily act as
a check on abusive action by other staff (child care workers). In fact,
the opposite is often the case. Most residents of our RTF have been severely
neglected and/or abused by their families. Many parents remain exceedingly
punitive, and sometimes brutal, in their attitudes; some have asked to
be notified when their youngster misbehaves so they can come and "deal
with him myself." We do not find it surprising that a recent nationally-reported
case of patient death during a "therapeutic" holding ("re-birthing") session
took place in the presence of the patient's family; families of children
in private facilities have repeatedly defended the institutions' use of
various behavior modification techniques that many would consider abusive.
The belief that involvement of certain professional staff will automatically
control inappropriate use of force in patient management is also without
empirical basis, as discussed below. The Hartford Courant series,
which seems to offer the only empirical basis for the regulatory effort,
indicates, in its first and most sensational example, that the youngster
involved was restrained (in a hospital, not an RTF) by three staff members,
one of whom was a nurse [10/14/98]. This apparently did not influence the
fatal outcome.

If the first assumption is at best controversial,
the second and third are demonstrably false. Embracing them uncritically
will result in significant harm to patients. We discuss them specifically
below.

Risk-Benefit
Issues in the Interim Proposal

A.
Risks associated with procedures for authorization

Essentially, the present formulation of the
proposal relies on mandated authorization by medically credentialled staff
(defined in New York as physicians, nurses, psychologists, and social workers)
to limit inappropriate or dangerous use of physical force by child care
workers. This approach is unworkable and, worse, counterproductive.

1. There is no
evidence that professional credentials of this type are based on any training,
skills, or interest in predicting, avoiding, "deescalating," or safely
controlling physical confrontations. In fact, training and experience in
education is probably the single professional credential best correlated
with experience in maintaining order among groups of adolescents.

The regulation offers no guidance at all
about what criteria the professional is to use in assessing the need for
restraint or seclusion. The assumption appears to be that, merely on the
basis of a degree or credential, the individual will be equipped to determine
how dangerous is the situation, and how best to ameliorate it.

The objective evidence that does exist suggests
that experienced correctional officers and police officers are more successful
in predicting violence than mental health professionals. This is not surprising
since developing these clinical skills is a central element in the career
success of these individuals. The same is, of course, true for child care
workers in an RTF for seriously disruptive youngsters, and probably for
successful teachers in urban high schools.

In fact, mental health professionals, who
typically find violent physical interaction distasteful, are much more
likely to prematurely authorize use of force by (other) staff against patients
than are competent and experienced child care workers who generally exercise
maximum efforts to avoid becoming involved in potentially dangerous interactions,
and who often pride themselves on their relationships with and ability
to "talk down" very disturbed residents.

The regulation appears to contemplate an
increase in "professional" medical staffing to allow oversight and authorization
of restraint at all hours of the day and night. The above observation on
the knowledge, skills, and motivation of the designated professionals is
particularly true with respect to members of these professions who, with
attractive jobs readily available in all areas, would choose specifically
to work quiet (i.e. night) shifts with the primary job purpose of authorizing
restraint and seclusion. It is exceedingly unlikely that the members
of the mental health professions who choose to take positions where they
will have minimal opportunity for patient contact, and where their primary
job responsibility will be authorizing use of force by other staff, will
exercise any meaningful role in moderating such use of force. On the contrary,
their presence is likely, if anything, to increase and legitimize these
interventions.

2. In real emergency situations, which the
regulation appropriately designates as the only ones in which force
should be used, people "on the spot" must be able to react immediately.
Requirements for prior supervisory approval cannot work. They will either
be ignored, or they will result in grave danger to patients. Consider two
routine examples:

A young woman flings a tape cassette player
to the floor, stamps on the case, picks up a battery, swallows it, and
begins cutting her wrist with a broken fragment. This entire sequence of
events may take 30 seconds. At present, our incident review of such a case
would focus on what the child care worker did, or failed to do, when the
player hit the floor. We would expect immediate, physical intervention
to prevent the later steps. Under the regulation, the child care worker's
responsibility would apparently be limited to seeking authorization to
intervene. Conscientious staff will ignore the regulation. Other staff
will allow serious self-injury to occur--and demonstrate complete callousness
to the patient.

Two young men become involved in a verbal
argument. Staff intervene and move them apart. Suddenly, one turns back,
runs towards the other, and punches him in the face. At present, before
the second boy can retaliate, staff pull them apart. Under the regulation,
staff would apparently watch them fight while seeking permission to intervene.
Under the regulation, the child care worker's responsibility would apparently
be limited to seeking authorization to intervene. Conscientious staff will
ignore the regulation. Others will allow a serious assault to proceed--and
demonstrate complete callousness to the patients.

The comments on the relevant section of the
regulation (483.358) appear to obfuscate the issue raised here by stating
that an order must be obtained, "at the time," that an intervention is
initiated. This is intellecutally dishonest, and provides no guidance at
all to staff. Are they to intervene and then seek an order, or to seek
an order and wait to intervene? Supposing they initiate intervention and
the order is subsequently refused? Will they then be disciplined, or charged
with assault? If this is the case, what is the likelihood staff will risk
their own welfare and safety to intervene promptly in dangerous situations?

Or will the order automatically be written
post
hoc, in which case there is no point requiring it? If the response
is that the order will always be written if the intervention was "reasonable",
then, in fact, the judgement of line staff about the "reasonable" need
for intervention is re-affirmed, and the entire exercise is pointless.

Perhaps the intent of requiring line staff
to obtain a restraint order is not to require prior substitution
of "professional" judgement, but to insure that qualified supervisory personnel
are involved as promptly as possible in overseeing and de-escalating an
emergency situation. That is a reasonable objective, but it is addressed
separately by the regulatory requirement for documented "face to face"
evaluation.

As it stands, the requirement for an order
"at the time" of intervention will create a substantial risk of harm to
residents due to delay in staff action. It also inevitably suggests
(to residents as well as staff) a complete lack of confidence in the people
who are trained, paid, and dedicated to providing on-going care.

3. The regulation implicitly encourages
transfer and diversion of psychiatric patients out of RTFs and into more
restrictive facilities, particularly those of the correctional system,
which routinely utilize physical coercion far beyond the scope of "personal
restraint," and are outside the jurisdiction of the regulators. This is
a potentially very grave threat to the welfare of very large numbers of
severely ill psychiatric patients.

The movement of severely psychiatrically
ill individuals from inpatient psychiatric facilities to prisons is by
now well documented. Since the regulatory proposal relies heavily on reports
in the press, reference is made to Fox Butterfield's essays, "Concern Rising
Over Use of Juvenile Prisons to 'Warehouse' the Mentally Ill" [New York
Times, 12/5/2000], and "Prisons Brim With Mentally Ill, Study Finds,"
[7/12/99]. The latter reports that the U.S. Department of Justice estimated
there were 283,800 inmates with mental illness, about 16% of the nation's
prison population. These individuals have essentially
no protections
against punitive, coercive, arbitrary and/or negligent use of seclusion,
restraint, and significant physical force.

There are already strong incentives for mental
health agencies to avoid the costly and relatively unrewarding task of
providing intensive inpatient supervision to behaviorally disruptive patients,
turning limited resources instead toward the much larger, more lucrative,
and more politically active group of patients who can manage well and productively
with relatively cheap and simple outpatient treatment. We presume it was
not the intention of this regulation to accelerate the trend of moving
the severely ill out of regulated treatment facilities into institutions
where oversight and control of restraint and seclusion is minimal. However,
the tone and content of the regulation strongly suggest that the regulators
believe any effort to hold back an agitated youngster is highly controversial
(viz. the sections on notification of rights, notification of family,
etc.), and therefore that individuals who behave dangerously without physical
intervention are generally not appropriate for the population of a psychiatric
residential treatment facility. We believe, on the contrary, that outpatient
rather than RTF care is the approach of choice for almost all youngsters
who do not require at least occasional physical interventions, and
that only individuals who require substantial external controls
should remain in inpatient psychiatric facilities.

Our program is currently involved in extended
negotiations with a Rockland County criminal court to avoid the transfer
of one of our patients to the county jail. The young man is unquestionably
chronically and severely psychotic, requires large doses of medication,
and is extremely contrite about his crime: "assaulting" a staff member
while he was a patient in a State Children's Psychiatric Center, before
transfer to our RTF. The interim regulation on personal restraint, as written,
is an open invitation to psychiatric facilities to use police and the criminal
justice system (which do not require an order from any oversight agency
or credentialled staff to use punitive mechanical restraints, seclusion,
and even deadly force) to contain assaultive behavior in psychiatric treatment
facilities. It is also an incentive to transfer long-term care of these
individuals to the criminal justice system.

Additionally RTFs may simply expand the common
pattern of refusing to admit individuals who may become assaultive
or physically agitated. Since it is clear such patients are no longer retained
in long term hospitals, they will enter the general population briefly
until they are arrested, sometimes after causing substantial harm to others,
after which they will move directly into the criminal justice system. This
is already a common sequence of events.

B.
Risks associated with mandatory notification procedures

Although the regulatory
comments indicate that it is inappropriate for the agency to practice medicine,
the patient care mandates in sections 483.366 and 483.370 are, in fact,
prescriptions for specific clinical interventions which substitute mandated
actions for clinical judgement. Like any such blanket mandates, they will
cause significant harm to some patients if applied across the board, but
the regulation completely fails to recognize or acknowledge this, presumably
because the formulators are themselves unaware of the risks. The underlying
assumption that physical intervention is always or almost always tantamount
to abuse is most inappropriately apparent in this section. The regulators
should recall that whenever a "personal safety intervention" occurs appropriately,
it reflects severely inappropriate behavior by the patient. Once
they have calmed, many patients are seriously embarrassed and ashamed by
such behavior, and emphatically do not want it reported to their families.

1) The regulations (483.366) require notification
of family, without the consent of a minor patient, whenever a "personal
safety intervention" occurs. In fact, family notification may or may not
be appropriate. Patients are to be allowed no discretion in this matter.

Many patients do not want their parents notified
when they are involved in problematic behavior, fearing, sometimes correctly,
that this will only further alienate the families, who not infrequently
retaliate by cancelling planned visits, etc. While we ordinarily attempt
to facilitate communication between residents and their families about
all troublesome matters, we also try to be respectful of patient autonomy
and privacy. Where the outburst has been brief, and no harm has occurred,
it may be appropriate not to involve a parent who is already firmly convinced
that the child is "no good."

The infringement on patient autonomy in this
section is particularly troubling not only because it is inherently inappropriate,
but also because the apparent regulatory objective (not allowing the facility
to "conceal" episodes of potentially abusive behavior) can so easily be
addressed in a completely unintrusive and uncontroversial manner by specifying
that all RTF patients should have reasonably frequent opportunity for unrestricted
communication with their families or other interested persons (i.e. law
guardians, etc.). Residents of our RTF have access to the facility telephones
at least daily (often much more frequently), and in our experience those
who wish to involve their parents or others in complaints about their treatment
are able to do so usually within hours of the event. (Sometimes an offer
to make telephone contact with a trusted adult is a useful way of calming
an agitated resident.) Additionally, all residents have access to the mail.

It would be appropriate to specify, as
a regulatory safeguard, that such opportunities for uncensored communication
with family members must be afforded to all RTF patients. However, we see
no basis for believing that it is either useful or ethical for a regulatory
policy to override patient rights to autonomy and privacy in the matter
of communication with families by forcing disclosure of events that patients
would prefer to keep confidential. Over-riding patient requests in
this matter requires a careful clinical judgement made on an individual
basis, and should not be mandated by blanket regulation.

2) Almost equally troubling are the requirements
set forth for post intervention meetings (483.370). In general, the inclusion
of this section implies that the regulators have no confidence in the ability
of RTF clinical leadership to recognize and organize basic staff and patient
communication, and this section is an attempt to substitute regulatory
mandate for clinical judgement. In addition, the mandate to hold the meetings
within a specific time frame is inconsistent with the practices expected
by New York State investigatory authorities which specifically advise against
organized discussions among the participants in alleged instances of abuse
until they have been individually interviewed by an independent investigator.
Since, as an essential element of patient protection, any patient can trigger
an investigation at any time by simply stating that s/he is alleging abuse,
and all such complaints, even those made in the heat of a restraint situation,
must be documented and independently investigated, the provisions of section
483.370 appear to undermine a significant existing patient protection procedure.

Part A, requiring participation of the patient
in a meeting with all the individuals involved in his/her restraint, is
an excursion into the prescription of clinical practice that cannot but
inflict serious psychological suffering and possibly harm on many youngsters.

The regulation appears to assume that every
physical interaction must become a major problem for all concerned. In
many instances, where the loss of control is brief and no harm is done,
youngsters may appropriately be allowed to simply let the incident pass,
for later discussion with a therapist or unit leader, but without being
forced into an extended and humiliating immediate apology to all concerned.

The regulation also seems to assume that
some kind of harm has always been inflicted on a youngster who is restrained,
and that some kind of apology or gesture of reconciliation by staff is
required. If the restraint has been warranted by the regulatory criteria,
the opposite is true. Frequently, staff who attempt to prevent a child
from injuring herself are rewarded with an outburst of violent rage. The
regulation mandates that an actively psychotic youngster who has ripped
a handful of hair from the head of a staff member, torn off the top of
her blouse and bra, and lacerated and bitten her chest, should meet with
her and a group of her colleagues within 24 hours for a "debriefing". What
will be the content of this debriefing? Since the regulators seem to assume
that the staff involved will be insensitve and perhaps brutal, and they
will certainly be hurt and angry, it would be safe to predict that this
meeting will be an extended exercise in verbal humiliation, which may well
end in another physical attack.

Obviously, competent treatment leaders will
arrange for youngsters who have lost control and become involved in physical
confrontations with staff (or with each other) to discuss the situation,
first with trusted adults who may not have been involved (often a primary
therapist or unit leader), and then, often along with the trusted adults,
with the object of the conflict. The hope is to effect some mutual understanding,
and, if possible, reconciliation, and to teach youngsters that verbal as
opposed to physical expressions of their feelings are possible and effective.
If the regulatory agency does not believe that RTF clinical leadership
is capable of recognizing this need, and of formulating individually appropriate
plans for who should meet with a patient in what order on what schedule,
the regulation should not permit the facilities to function at all.

Further, with respect to section B, requiring
documentation of staff meetings to discuss restraint episodes, it is difficult
to see how the agency can entrust RTF clinical leadership with any aspect
of patient care if they do not trust this leadership to arrange appropriate
staff discussion of clinical problems. The mandated meetings are an infinitesimal
part of the challenge of creating and maintaining a viable treatment team
and a therapeutic milieu. We already hold several types of meetings of
this kind on a regular basis. Multiple similar provisions of the regulatory
proposal, such as 483.360 mandating discussion with the treating physician
when an incident occurs, and 483.372, mandating prompt medical treatment
for injuries, appear similarly gratuitous and/or demeaning in view of the
ordinary "standard of care" requirements for any accredited medical facility.
Part B of this section is pointless.

Medical and psychological follow-up management
of a dangerous act by a patient is not intrinsically different from management
of any other behavior problem (i.e. refusal to do homework), and it is
inimical to patient welfare to specify by regulation the details of clinical
practice (i.e. who should attend a meeting at what time).

Cost-Benefit
Issues in the Interim Proposal

A.
Costs of the notification requirements

The cost analysis of the various aspects of the proposal does not reflect
the cost of diverting staff time and the focus of patient and family discussion
to mandatory notification procedures which are of little or no benefit
in most cases. Thus, the thirty minutes allotted to mandated discussion
with parents of restraint policy will inevitably change the focus of the
initial parent contact from, "What we can do to help you?" to, "What you
can do to protect yourself and your child from us?" Parents of most of
our residents have serious and pressing needs of their own (many demand
gifts as a condition of allowing youngsters to visit them, or simply refuse
to see the children at all). The regulatory assumption of a legalistic,
adversarial interaction between the RTF and the patient and family is as
destructive to the therapeutic alliance as it is unwarranted. Similarly,
uninvolved residents who are constantly clamoring for increased attention
from their unit leaders, and are invariably angry when a disruptive youngster
monopolizes this attention, are not well served (are, in fact, penalized)
by adding an additional hour or more of mandated reporting time to the
leaders' workload whenever a restraint occurs. All of these costs will
result, in practice, in a net deterioration of the quality of patient management.
The regulatory intent could be accomplished much more economically and
with better clinical effect without costly and inappropriate micro-management
of the facility by simply requiring documentation of maximum feasible involvement
of the patient and family in all aspects of treatment planning.

B.
Costs of the training requirements

The staff training requirements (483.376
a through h) appear generally reasonable except that inserted in an uncontroversial
list of provisions is one (b), which is both costly, essentially unrelated
to the purpose of the regulation, and, in the context of the rest of the
regulatory approach, completely incongruous. This is the requirement that
all staff receive annual training and certification in cardiopulmonary
resuscitation, and appears to have been introduced by the editorial staff
of the Harford Courant. In its editorial of October 22, 1998, concluding
the exposé that is cited as prompting the present regulatory
changes, the Courant opined that it was "unbelievable" that "no
one involved in the incident [the death of Andrew McClain at Elmcrest Psychiatric
Hospital] was trained in basic cardiopulmonary resuscitation..." [10/22/98].
The editorial writer was more accurate than he realized; the statement
was literally "unbelievable" since the Courant's own article on
the incident [10/14/98] stated that the patient was restrained by three
staff members including a nurse (for whom basic CPR training would
have been mandatory).

We are aware that some authorities have
advocated that all employers be required to finance such training for their
employees, on the grounds of general public health benefit. However, in
the absence any consensus for such a universal requirement, it appears
grossly inappropriate to impose it on residential treatment facilities
for young people. The sole justification here appears to be the finding
that the (exceedingly rare) fatal outcomes in restraint episodes are frequently
linked to cardiorespiratory events (notably choking). The justification
for CPR training is presumably that the staff who were so poorly trained
or so vicious that they precipitated a cardiac arrest, and who have ignored
the regulatory mandate for involvement of medical staff, will, nonetheless,
suddenly competently determine that institution of CPR is required and
institute appropriate resucitation measures. These assumptions might apply
accurately to professional torturers or interrogators, but in the context
of RTF staff, they are mind-boggling, and clearly reflect journalistic
fantasy rather than any real argument for this costly and potentially dangerous
provision.

The same uncredentialled staff whom the regulators
will not entrust with judgement about whether to institute a simple, low-risk
physical restraint without consultation, are apparently being entrusted
with judgement about whether to independently institute CPR, an intervention
carrying substantial physical risk--even though there is a separate mandate
that appropriate medical staffing be available!

The regulatory requirement for involvement
of nursing staff (who are required to maintain certification in CPR), the
requirements for use of only safe methods of restraint, and for staff training
in these methods, and the overall regulatory intent of minimizing episodes
of restraint altogether, provide more than adequate protection against
any accidental cardivascular death that would be preventable by non-medical
staff use of CPR. Inappropriate attempts by inexperienced, minimally trained
persons to begin unnecessary CPR carry substantial risks of morbidity and
mortality, and are unjustifiable when qualified medical staff are available.
We believe that universal staff certification in CPR will not benefit a
single RTF resident, and challenge the agency to produce any data to the
contrary. The complete absence of rational support for increased CPR
training of non-medical staff in RTFs is dramatically underscored by a
self-laudatory editorial in which the Courant congratulated itself
on the "improvements" its own reports had prompted at Elmcrest Hospital:
"...thanks to the bitter lessons of his death, one life has been saved
and another has been improved.. Two months later, staffers who had just
undergone state-ordered CPR training saved an adult patient whose heart
was failing." [10/15/98]. This fortuitous event, if true, was, of course,
irrelevant to the RTF setting, which has no adult patients, unrelated to
the issue of restraint and seclusion, which was not involved, and, in fact,
had nothing whatsoever to do with psychiatric treatment of any kind. Resort
to such chicanery reflects the level of intellectual integrity of the entire
discussion.

Further, the cost analysis of the training
requirement does not recognize the alternative, relevant training functions
that will be supplanted by the on-going CPR certification. If the costly
staff time involved in training is devoted instead to understanding of
psychiatric diagnoses, purposes and effects of psychotropic medication,
normal child development, understanding of community issues, methods of
avoiding confrontation, etc. etc. (as ours now is), the immediate and long-range
benefit to patients and staff is substantial. The loss of this training
is the real unstated cost of the mandate for CPR certification.

Conclusion

We recognize that the regulatory agency is
under substantial political pressure to produce evidence of its concern
about abuse of patients in psychiatric facilities. However, responsible
government action, like responsible medical treatment, should reflect a
reasoned assessment of the severity of the problem, and of the risks and
costs as well as the benefits of any proposed intervention. While it is
easy and tempting to make demagogic use of press surveys, the documented
scope of the problem of abuse of children in psychiatric facilities is
actually very small. It is dwarfed by the unquestioned frequency and severity
of abusive incidents (including fatalities) occurring in various congregate
foster care institutions, in non-Medicaid private treatment centers or
schools, in juvenile justice facilities, and in homes, all of which are
beyond HCFA's jurisdiction. Transferring children to more dangerous settings
would be an ironic outcome for an effort to assure them of greater protection.

It is certainly appropriate for the regulatory
agency to explore ways of addressing the problems of restraint and seclusion.
As indicated in our introduction, we are sympathetic to the idea of eliminating
all seclusion and mechanical restraint because we believe they can never
meet the appropriate criteria for emergency intervention. However, we are
gravely concerned that elements of the present regulatory proposal are
counterproductive and will substantially endanger RTF patients, erode RTF
patient rights, reduce the general quality of RTF care, and ultimately
displace the most vulnerable RTF patients into much less therapeutic and
much more restrictive and intrusive types of unregulated care.